New York Lawyer's Code of Professional Responsibility
PREAMBLE
The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity of the individual through reason for enlightened self-government. Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self-government is impossible.
Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.
In fulfilling professional responsibilities, a lawyer necessarily assumes various roles that require the performance of many difficult tasks. Not every situation which the lawyer may encounter can be foreseen, but fundamental ethical principles are always present for guidance. Within the framework of these principles, a lawyer must with courage and foresight be able and ready to shape the body of the law to the ever-changing relationships of society.
The Code of Professional Responsibility points the way to the aspiring and provides standards by which to judge the transgressor. Each lawyer's own conscience must provide the touchstone against which to test the extent to which the lawyer's actions should rise above minimum standards. But in the last analysis it is the desire for the respect and confidence of the members of the profession and of the society which the lawyer serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.
PRELIMINARY STATEMENT
The Code of Professional Responsibility consists of three separate but interrelated parts: Canons, Ethical Considerations, and Disciplinary Rules. The Code is designed to be both an inspirational guide to the members of the profession and a basis for disciplinary action when the conduct of a lawyer falls below the required minimum standards stated in the Disciplinary Rules.
Obviously the Canons, Ethical Considerations, and Disciplinary Rules cannot apply to non-lawyers; however, they do define the type of ethical conduct that the public has a right to expect not only of lawyers but also of their non-professional employees and associates in all matters pertaining to professional employment. A lawyer should ultimately be responsible for the conduct of the lawyer's employees and associates in the course of the professional representation of the client.
The Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession. They embody the general concepts from which the Ethical Considerations and the Disciplinary Rules are derived.
The Ethical Considerations are aspirational in character and represent the objectives toward which every member of the profession should strive. They constitute a body of principles upon which the lawyer can rely for guidance in many specific situations.
The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. The Disciplinary Rules should be uniformly applied to all lawyers, regardless of the nature of their professional activities. The Code makes no attempt to prescribe either disciplinary procedures or penalties for violation of a Disciplinary Rule, nor does it undertake to define standards for civil liability of lawyers for professional conduct. The severity of judgment against one found guilty of violating a Disciplinary Rule should be determined by the character of the offense and the attendant circumstances. An enforcing agency, in applying the Disciplinary Rules, may find interpretive guidance in the basic principles embodied in the Canons and in the objectives reflected in the Ethical Considerations.
No codification of principles can expressly cover all situations that may arise. Accordingly, conduct that does not appear to violate the express terms of any Disciplinary Rule nevertheless may be found by an enforcing agency to be the subject of discipline on the basis of a general principle illustrated by a Disciplinary Rule or on the basis of an accepted common law principle applicable to lawyers.
DEFINITIONS
(a) "Differing interests" include every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.
(b) "Law firm" includes, but is not limited to, a professional legal corporation, a limited liability company or partnership engaged in the practice of law, the legal department of a corporation or other organization and a qualified legal assistance organization.
(c) "Person" includes a corporation, an association, a trust, a partnership, and any other organization or legal entity.
(d) "Professional legal corporation" means a corporation, or an association treated as a corporation, authorized by law to practice law for profit.
(e) "State" includes the District of Columbia, Puerto Rico, and other federal territories and possessions.
(f) "Tribunal" includes all courts, arbitrators and all other adjudicatory bodies.
(g) (Repealed.)
(h) "Qualified legal assistance organization" means an office or organization of one of the four types listed in DR 2-103 [1200.8] (D)(1) through (4), inclusive, that meets all the requirements thereof.
(i) "Fraud" does not include conduct, although characterized as fraudulent by statute or administrative rule, which lacks an element of scienter, deceit, intent to mislead, or knowing failure to correct misrepresentations which can be reasonably expected to induce detrimental reliance by another.
(j) "Domestic
relations matters
11. "Advertisement" means any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers.
12. "Computer-accessed communication" means any communication made by or on behalf of a lawyer or law firm that is disseminated through the use of a computer or related electronic device, including, but not limited to, web sites, weblogs, search engines, electronic mail, banner advertisements, pop-up and pop-under advertisements, chat rooms, list servers, instant messaging, or other internet presences, and any attachments or links related thereto.
* “Confidence” and “Secret” are defined in DR 4-101 [1200.19] (A). “Sexual relations” is defined in DR 5-111 [1200.29] (A). “Copy” is defined in DR 9-102 [1200.46] (D)(10).
** As used in this publication, all references in brackets [ ] are to the Disciplinary Rules of the Code of Professional Responsibility, promulgated as joint rules of the Appellate Division of the Supreme Court and set forth in Part 1200 of Title 22 of New York Codes, Rules and Regulations (NYCRR). “Statement of Client’s Rights,” 22 NYCRR Part 1210.
CANON 1. A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession
ETHICAL CONSIDERATIONS
EC 1-1
A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence. Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer.
EC 1-2
The public should be protected from those who are not qualified to be lawyers by reason of a deficiency in education or moral standards or of other relevant factors but who nevertheless seek to practice law. To assure the maintenance of high moral and educational standards of the legal profession, lawyers should affirmatively assist courts and other appropriate bodies in promulgating, enforcing, and improving requirements for admission to the bar. In like manner, the bar has a positive obligation to aid in the continued improvement of all phases of pre-admission and post-admission legal education.
EC 1-3
Before recommending an applicant for admission, a lawyer should be satisfied that the applicant is of good moral character. Although a lawyer should not become a self-appointed investigator or judge of applicants for admission, the lawyer should report to proper officials all unfavorable information the lawyer possesses relating to the character or other qualifications of an applicant.
EC 1-4
The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the attention of the proper officials. A lawyer should reveal voluntarily to those officials all knowledge, other than knowledge protected as a confidence or secret, of conduct of another lawyer which the lawyer believes clearly to be a violation of the Disciplinary Rules that raises a substantial question as to the other lawyer's honesty, trustworthiness or fitness in other respects as a lawyer. A lawyer should, upon request, serve on and assist committees and boards having responsibility for the administration of the Disciplinary Rules.
EC 1-5
A lawyer should maintain high standards of professional conduct and should encourage other lawyers to do likewise. A lawyer should be temperate and dignified, and should refrain from all illegal and morally reprehensible conduct. Because of the lawyer's position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.
EC 1-6
An applicant for admission to the bar or a lawyer may be unqualified, temporarily or permanently, for other than moral and educational reasons, such as mental or emotional instability. Lawyers should be diligent in taking steps to see that during a period of disqualification such person is not granted a license or, if licensed, is not permitted to practice. In like manner, when the disqualification has terminated, members of the bar should assist such person in being licensed, or, if licensed, in being restored to the full right to practice.
EC 1-7
A lawyer should avoid bias and condescension toward, and treat with dignity and respect, all parties, witnesses, lawyers, court employees, and other persons involved in the legal process.
EC 1-8
A law firm should adopt measures giving reasonable assurance that all lawyers in the firm conform to the Disciplinary Rules and that the conduct of non-lawyers employed by the firm is compatible with the professional obligations of the lawyers in the firm. Such measures may include informal supervision and occasional admonition, a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a designated senior lawyer or special committee, and continuing legal education in professional ethics.
Provision of Nonlegal Services
EC 1-9
EC 1-10
EC 1-11
EC 1-12
Contractual Relationships Between Lawyers and Nonlegal Professionals
EC 1-13
EC 1-14
EC 1-15
EC 1-16
EC 1-17
EC 1-18
DISCIPLINARY RULES
DR 1-101 [1200.2] Maintaining Integrity and Competence of the Legal Profession.
A. A lawyer is subject to discipline if the lawyer has made a materially false statement in, or has deliberately failed to disclose a material fact requested in connection with, the lawyer's application for admission to the bar.
B. A lawyer shall not further the application for admission to the bar of another person that the lawyer knows to be unqualified in respect to character, education, or other relevant attribute.
DR 1-102 [1200.3] Misconduct.
A. A lawyer or
1. Violate a Disciplinary Rule.
2. Circumvent a Disciplinary Rule through actions of another.
3. Engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer.
4. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
5. Engage in conduct that is prejudicial to the administration of justice.
6. Unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment, on the basis of age, race, creed, color, national origin, sex, disability, marital status, or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable, and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding.
7. Engage in any other conduct that adversely reflects on the lawyer's fitness as a lawyer.
DR 1-103 [1200.4] Disclosure of Information to Authorities.
A. A lawyer possessing knowledge, (1) not protected as a confidence or secret, or (2) not gained in the lawyer's capacity as a member of a bona fide lawyer assistance or similar program or committee, of a violation of DR 1-102 [1200.3] that raises a substantial question as to another lawyer's honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
B. A lawyer possessing knowledge or evidence, not protected as a confidence or secret, concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges.
DR 1-104 [1200.5] Responsibilities of a
Partner or Supervisory Lawyer and Subordinate Lawyers.
A. A
B. A lawyer with management responsibility
in the
C. A
D. A lawyer shall be responsible for a violation of the Disciplinary Rules by another lawyer or for conduct of a non-lawyer employed or retained by or associated with the lawyer that would be a violation of the Disciplinary Rules if engaged in by a lawyer if:
1. The lawyer orders, or directs the specific conduct, or, with knowledge of the specific conduct, ratifies it; or
2. The lawyer is a partner in
the E. F. A. A lawyer admitted to practice in this state is subject to the disciplinary authority of this state, regardless of where the lawyer’s conduct occurs. A lawyer may be subject to the disciplinary authority of both this state and another jurisdiction where the lawyer is admitted for the same conduct. B. In any exercise of the disciplinary authority of this state, the rules of professional conduct to be applied shall be as follows: 1. For conduct in connection with a proceeding in a court before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and a. If the lawyer is licensed to practice only in this state, the rules to be applied shall be the rules of this state, and b. If the lawyer is licensed to practice in this state and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct. A. With respect to lawyers or law firms providing non-legal services to clients or other persons: 1. A lawyer or law firm that provides non-legal services to a person that are not distinct from legal services being provided to that person by the lawyer or law firm is subject to these Disciplinary Rules with respect to the provision of both legal and non-legal services. 2. A lawyer or law firm that provides non-legal services to a person that are distinct from legal services being provided to that person by the lawyer or law firm is subject to these Disciplinary Rules with respect to the non-legal services if the person receiving the services could reasonably believe that the non-legal services are the subject of an attorney-client relationship. 3. A lawyer or law firm that is an owner, controlling party or agent of, or that is otherwise affiliated with, an entity that the lawyer or law firm knows to be providing non-legal services to a person is subject to these Disciplinary Rules with respect to the non-legal services if the person receiving the services could reasonably believe that the non-legal services are the subject of an attorney-client relationship. 4. For purposes of DR 1-106 [1200.5-b](A)(2) and DR 1-106 [1200.5-b](A)(3), it will be presumed that the person receiving non-legal services believes the services to be the subject of an attorney-client relationship unless the lawyer or law firm has advised the person receiving the services in writing that the services are not legal services and that the protection of an attorney-client relationship does not exist with respect to the non-legal services, or if the interest of the lawyer or law firm in the entity providing non-legal services is de minimis. B. Notwithstanding the provisions of DR 1-106 [1200.5-b](A), a lawyer or law firm that is an owner, controlling party, agent, or is otherwise affiliated with an entity that the lawyer or law firm knows is providing non-legal services to a person shall not permit any non-lawyer providing such services or affiliated with that entity to direct or regulate the professional judgment of the lawyer or law firm in rendering legal services to any person, or to cause the lawyer or law firm to compromise its duty under DR 4-101 [1200.19](B) and (D) with respect to the confidences and secrets of a client receiving legal services. C. For purposes of this Disciplinary Rule , “non-legal services” shall mean those services that lawyers may lawfully provide and that are not prohibited as an unauthorized practice of law when provided by a non-lawyer. A. The practice of law has an essential tradition of complete independence and uncompromised loyalty to those it serves. Recognizing this tradition, clients of lawyers practicing in New York State are guaranteed “independent professional judgment and undivided loyalty uncompromised by conflicts of interest”. Indeed, these guarantees represent the very foundation of the profession and allow and foster its continued role as a protector of the system of law. Therefore, a lawyer must remain completely responsible for his or her own independent professional judgment, maintain the confidences and secrets of clients, preserve funds of clients and third parties in his or her control, and otherwise comply with the legal and ethical principles governing lawyers in New York State. Multi-disciplinary practice between lawyers and non-lawyers is incompatible with the core values of the legal profession and, therefore, a strict division between services provided by lawyers and those provided by non-lawyers is essential to protect those values. However, a lawyer or law firm may enter into and maintain a contractual relationship with a non-legal professional or non-legal professional service firm for the purpose of offering to the public, on a systematic and continuing basis, legal services performed by the lawyer or law firm, as well as other non-legal professional services, notwithstanding the provisions of DR 5-101 [1200.20] (A), provided that: 1. The profession of the non-legal professional or non-legal professional service firm is included in a list jointly established and maintained by the Appellate Divisions pursuant to section 1205.3 of the Joint Appellate Division Rules; 2. The lawyer or law firm neither grants to the non-legal professional or non-legal professional service firm, nor permits such person or firm to obtain, hold or exercise, directly or indirectly, any ownership or investment interest in, or managerial or supervisory right, power or position in connection with the practice of law by the lawyer or law firm nor, as provided in DR 2-103 [1200.8] (B)(1), shares legal fees with a non-lawyer or receives or gives any monetary or other tangible benefit for giving or receiving a referral; and 3. The fact that the contractual relationship exists is disclosed by the lawyer or law firm to any client of the lawyer or law firm before the client is referred to the non-legal professional service firm, or to any client of the non-legal professional service firm before that client receives legal services from the lawyer or law firm; and the client has given informed written consent and has been provided with a copy of the “Statement of Client’s Rights In Cooperative Business Arrangements” pursuant to section 1205.4 of the Joint Appellate Divisions Rules.
B. For purposes of DR 1-107 [1200.5-c](A): 1. Each profession on the list maintained pursuant to a joint rule of the Appellate Divisions shall have been designated sua sponte, or approved by the Appellate Divisions upon application of a member of a non-legal profession or non-legal professional service firm, upon a determination that the profession is composed of individuals who, with respect to their profession: a. have been awarded a Bachelor's Degree or its equivalent from an accredited college or university, or have attained an equivalent combination of educational credit from such a college or university on work experience; b. are licensed to practice the profession by an agency of the State of New York or the United States Government; and c. are required under penalty of suspension or revocation of license to adhere to a code of ethical conduct that is reasonably comparable to that of the legal profession.
2. The term “ownership or investment interest” shall mean any such interest in any form of debt or equity, and shall include any interest commonly considered to be an interest accruing to or enjoyed by an owner or investor. C. DR 1-107 [1200.5-c](A) shall not apply to relationships consisting solely of non-exclusive reciprocal referral agreements or understandings between a lawyer or law firm and a non-legal professional or non-legal professional service firm. D. Notwithstanding DR 3-102 [1200.17](A), a lawyer or law firm may allocate costs and expenses with a non-legal professional or non-legal professional service firm pursuant to a contractual relationship permitted by DR 1-107 [1200.5-c](A), provided the allocation reasonably reflects the costs and expenses incurred or expected to be incurred by each. ETHICAL CONSIDERATIONS The need of members of the public for legal services is met only if they recognize their legal problems, appreciate the importance of seeking assistance, and are able to obtain the services of acceptable legal counsel. Hence, important functions of the legal profession are to educate people to recognize their problems, to facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available. Recognition of Legal Problems The legal professional should help the public to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise. Whether a lawyer acts properly in volunteering in-person advice to a non-lawyer to seek legal services depends upon the circumstances. The giving of advice that one should take legal action could well be in fulfillment of the duty of the legal profession to assist the public in recognizing legal problems. A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for non-lawyers should caution them not to attempt to solve individual problems upon the basis of the information contained therein. Selection of a Lawyer Formerly a potential client usually knew the reputations of local lawyers for competency and integrity and therefore could select a practitioner in whom he or she had confidence. This traditional selection process worked well because it was initiated by the client and the choice was an informed one. Changed conditions, however, have seriously restricted the effectiveness of the traditional selection process. Often the reputations of lawyers are not sufficiently known to enable potential users of legal services to make intelligent choices. The law has become increasingly complex and specialized. Few lawyers are willing and competent to deal with every kind of legal matter, and many people have difficulty in determining the competence of lawyers to render different types of legal services. The selection of legal counsel is particularly difficult for transients, persons moving into new areas, persons of limited education or means, and others who have little or no contact with lawyers. Lack of information about the availability of lawyers, the qualifications of particular lawyers, the areas of law in which lawyers accept representation and the cost of legal services impedes the intelligent selection of lawyers. Selection of a lawyer should be made on an informed basis. Disclosure of truthful and relevant information about lawyers and their areas of practice should assist in the making of an informed selection. Disinterested and informed advice and recommendation of third parties--relatives, friends, acquaintances, business associates, or other lawyers--may also be helpful. Lawyer Advertising The attorney client relationship is personal and unique and should not be established as a result of pressures and deceptions. A lawyer should ensure that the information contained in any advertising which the lawyer publishes, broadcasts or causes to be published or broadcast is relevant, is disseminated in an objective and understandable fashion, and would facilitate the prospective client's ability to select a lawyer. A lawyer should strive to communicate such information without undue emphasis upon style and advertising stratagems which serve to hinder rather than to facilitate intelligent selection of counsel. Although communications involving puffery and claims that cannot be measured or verified are not specifically referred to in DR 2-101, such communications would be prohibited to the extent that they are false, deceptive or misleading. In disclosing information, by advertisements or otherwise, relating to a lawyer's education, experience or professional qualifications, special care should be taken to avoid the use of any statement or claim which is false, fraudulent, misleading, deceptive or unfair, or which is violative of any statute or rule of court. A lawyer who advertises in a state other than New York should comply with the advertising rules or regulations applicable to lawyers in that state. The name under which a lawyer practices may be a factor in the selection process. The use of a trade name or an assumed name could mislead non-lawyers concerning the identity, responsibility, and status of those practicing thereunder. For many years some law firms have used a firm name retaining one or more names of deceased or retired partners and such practice is not improper if the firm is a bona fide successor of a firm in which the deceased or retired person was a member, if the use of the name is authorized by law or by contract, and if the public is not misled thereby. However, the name of a partner who withdraws from a firm but continues to practice law should be omitted from the firm name in order to avoid misleading the public. A lawyer occupying a judicial, legislative, or public executive or administrative position who has the right to practice law concurrently may allow his or her name to remain in the name of the firm if the lawyer actively continues to practice law as a member thereof. If the lawyer does not have the right to practice law concurrently, the lawyer's name should be removed from the firm name, and the lawyer should not be identified as a past or present member of the firm; and the lawyer should not hold himself or herself out as being a practicing lawyer. In order to avoid the possibility of misleading persons with whom a lawyer deals, a lawyer should be scrupulous in the representation of professional status. A lawyer should not hold himself or herself out as being a partner or associate of a law firm if not one in fact, and thus should not hold himself or herself out as being a partner or associate if the lawyer only shares offices with another lawyer. The legal profession has developed lawyer referral systems designed to aid individuals who are able to pay fees but need assistance in locating lawyers competent to handle their particular problems. Use of a lawyer referral system enables an individual to avoid an uninformed selection of a lawyer because such a system makes possible the employment of competent lawyers who have indicated an interest in the subject matter involved. Lawyers should support the principle of lawyer referral systems and should encourage the evolution of other ethical plans which aid in the selection of qualified counsel. Persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in appropriate activities designed to achieve that objective. Financial Ability to Employ Counsel: Persons Able to Pay Reasonable Fees The determination of a proper fee requires consideration of the interests of both client and lawyer. A lawyer should not charge more than a reasonable fee, for excessive cost of legal service would deter non-lawyers from using the legal system to protect their rights and to minimize and resolve disputes. Furthermore, an excessive charge abuses the professional relationship between lawyer and client. The determination of the reasonableness of a fee requires consideration of all relevant circumstances, including those stated in the Disciplinary Rules. The fees of a lawyer will vary according to many factors, including the time required, the lawyer's experience, ability, and reputation, the nature of the employment, the responsibility involved and the results obtained. It is a commendable and long-standing tradition of the bar that special consideration is given in the fixing of any fee for services rendered another lawyer or a member of the lawyer's immediate family. As soon as feasible after a lawyer has been employed, it is desirable that a clear agreement be reached with the client as to the basis of the fee charges to be made. Such a course will not only prevent later misunderstanding but will also work for good relations between the lawyer and the client. It is usually beneficial to reduce to writing the understanding of the parties regarding the fee, particularly when it is contingent. A lawyer should be mindful that many persons who desire to employ a lawyer may have had little or no experience with fee charges of lawyers, and for this reason lawyers should explain fully to such persons the reasons for the particular fee arrangement proposed. Contingent fee arrangements in civil cases have long been commonly accepted in the United States in proceedings to enforce claims. The historical bases of their acceptance are that (1) they often, and in a variety of circumstances, provide the only practical means by which one having a claim against another can economically afford, finance, and obtain the services of a competent lawyer to prosecute a claim, and (2) a successful prosecution of the claim produces a fund out of which the fee can be paid. Although a lawyer generally should decline to accept employment on a contingent fee basis by one who is able to pay a reasonable fixed fee, it is not necessarily improper for a lawyer, where justified by the particular circumstances of a case, to enter into a contingent fee contract in a civil case with any client who, after being fully informed of all relevant factors, desires that arrangement. Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relations matters are rarely justified. In administrative agency proceedings, contingent fee contracts should be governed by the same considerations as in other civil cases. Public policy properly condemns contingent fee arrangements in criminal cases, largely on the ground that legal services in criminal cases do not produce a fund out of which the fee can be paid. A lawyer should not accept compensation or anything of value incident to the lawyer's employment or services from one other than the client without the knowledge and consent of the client after full disclosure. Without the consent of the client, a lawyer should not associate in a particular matter another lawyer outside the lawyer's firm. A fee may properly be divided between lawyers properly associated if the division is in proportion to the services performed by each lawyer or, by a writing given to the client, each lawyer assumes joint responsibility for the representation and if the total fee is reasonable. A lawyer should be zealous in efforts to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject. A lawyer should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client. Financial Ability to Employ Counsel: Persons Unable to Pay Reasonable Fees A person whose financial ability is not sufficient to permit payment of any fee cannot obtain legal services, other than in cases where a contingent fee is appropriate, unless the services are otherwise provided. Even a person of means may be unable to pay a reasonable fee, which is large because of the complexity, novelty, or difficulty of the problem or similar factors. A lawyer has an obligation to render public interest and pro bono legal service. Each lawyer should aspire to provide at least 20 hours of pro bono services annually by providing legal services at no fee and without expectation of fee to: (1) persons of limited financial means, or (2) not for profit, governmental or public service organizations, where the legal services are designed primarily to address the legal and other basic needs of persons of limited financial means, or (3) organizations specifically designed to increase the availability of legal services to persons of limited financial means. Each lawyer also should provide financial support for such organizations to assist in providing legal services to persons of limited financial means. In addition to meeting the aspirational goals set forth above, a lawyer also should render public interest and pro bono legal service: (1) where the payment of standard legal fees would significantly deplete the recipients economic resources or would be otherwise inappropriate, by providing legal services at no fee or substantially reduced fees to individuals, organizations seeking to secure or protect civil rights, civil liberties or public rights, or to not for profit, government or public service organizations in matters in furtherance of their organization purposes; or (2) by providing legal services at a substantially reduced fee to person of limited financial means; or (3) by participating without compensation in activities for improving the law, the legal system or the legal profession; or (4) by providing legal services without compensation or at substantially reduced compensation in aid or support of the judicial system (including services as an arbitrator, mediator or neutral in court-annexed alternative dispute resolution). Acceptance and Retention of Employment A lawyer is under no obligation to act as advisor or advocate for every person who may wish to become a client; but in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment. The fulfillment of this objective requires acceptance by a lawyer of a fair share of tendered employment which may be unattractive both to the lawyer and the bar generally. History is replete with instances of distinguished sacrificial services by lawyers who have represented unpopular clients and causes. Regardless of personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse. A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. The personal preference of a lawyer to avoid adversary alignment against judges, other lawyers, public officials or influential members of the community does not justify rejection of tendered employment. When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, the lawyer should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case. Employment should not be accepted by a lawyer who is unable to render competent service or who knows or it is obvious that the person seeking to employ the lawyer desires to institute or maintain an action merely for the purpose of harassing or maliciously injuring another. Likewise, a lawyer should decline employment if the intensity of personal feelings, as distinguished from a community attitude, may impair effective representation of a prospective client. If a lawyer knows that a client has previously obtained counsel, the lawyer should not accept employment in the matter unless the other counsel approves or withdraws, or the client terminates the prior employment. Full availability of legal counsel requires both that persons be able to obtain counsel and that lawyers who undertake representation complete the work involved. Trial counsel for a convicted defendant should continue to represent the client by advising whether to take an appeal and, if the appeal is prosecuted, by representing the client through the appeal unless new counsel is substituted or withdrawal is permitted by the appropriate court. A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances and, in a matter pending before a tribunal, the lawyer must comply with the rules of the tribunal regarding withdrawal. A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of the client and the possibility of prejudice to the client as a result of the withdrawal. Even when withdrawal is justifiable, a lawyer should protect the welfare of the client by giving due notice of the withdrawal, suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm. Further, the lawyer should refund to the client any compensation not earned during the employment. As a part of the legal profession's commitment to the principle
that high quality legal services should be available to all, lawyers are encouraged
to cooperate with qualified
legal assistance organizations providing prepaid legal services. Such participation
should at all times be in accordance with the basic tenets of the profession:
independence, integrity, competence and devotion to the interests of individual
clients. A lawyer so participating should make certain that the relationship
with a qualified legal assistance organization in no way interferes with independent,
professional representation of the interests of the individual client. A lawyer
should avoid situations in which officials of the organization who are not lawyers
attempt to direct lawyers concerning the manner in which legal services are
performed for individual members and should also avoid situations in which considerations
of economy are given undue weight in determining the lawyers employed by an
organization or the legal services to be performed for the member or beneficiary,
rather than competence and quality of service. A lawyer interested in maintaining
the historic traditions of the profession and preserving the function of a lawyer
as a trusted and independent advisor to individual members of society should
carefully assess such factors when accepting employment by, or otherwise participating
in a particular, qualified legal assistance organization and, while so participating,
should adhere to the highest professional standards of effort and competence. Sale of Law Practice Improper Political Contributions DISCIPLINARY RULES A. A lawyer or law firm shall not use or disseminate or participate in the use or dissemination of any advertisement that: 1. contains statements or claims that are false, deceptive or misleading; or 2. violates a disciplinary rule. B. Subject to the provisions of subdivision (a), an advertisement may include information, as to: 1. legal and non-legal education, degrees and other scholastic distinctions, dates of admission to any bar; areas of the law in which the lawyer or law firm practices, as authorized by this Part; public offices and teaching positions held; publications of law related matters authored by the lawyer; memberships in bar associations or other professional societies or organizations, including offices and committee assignments therein; foreign language fluency; and bona fide professional ratings; 2. names of clients regularly represented, provided that the client has given prior written consent; 3. bank references; credit arrangements accepted; prepaid or group legal services programs in which the lawyer or law firm participates; non-legal services provided by the lawyer or law firm or by an entity owned and controlled by the lawyer or law firm; the existence of contractual relationships between the lawyer or law firm and a non-legal professional or non-legal professional service firm, to the extent permitted by DR 1-107 [1200.5-c], and the nature and extent of services available through those contractual relationships; and 4. legal fees for initial consultation; contingent fee rates in civil matters when accompanied by a statement disclosing the information required by subdivision (p) of this section; range of fees for legal and non-legal services, provided that there be available to the public free of charge a written statement clearly describing the scope of each advertised service; hourly rates; and fixed fees for specified legal and non-legal services.
C. An advertisement shall not: 1. include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter still pending; 2. include a paid endorsement of, or testimonial about, a lawyer or law firm without disclosing that the person is being compensated therefor; 3. include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case; 4. use actors to portray the lawyer, members of the law firm, or clients, or utilize depictions of fictionalized events or scenes, without disclosure of same; 5. rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence; 6. be made to resemble legal documents; or 7. utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter. D. An advertisement that complies with subdivision (e) of this section may contain the following: 1. statements that are reasonably likely to create an expectation about results the lawyer can achieve; 2. statements that compare the lawyers services with the services of other lawyers; 3. testimonials or endorsements of clients, where not prohibited by subdivision (c)(1) of this section, and of former clients; or
4. statements describing or characterizing the quality of the lawyers or law firms services. E. It is permissible to provide the information set forth in subdivision (d) of this section provided: 1. its dissemination does not violate subdivision (a) of this section; 2. it can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; and 3. it is accompanied by the following disclaimer: "Prior results do not guarantee a similar outcome. F. Every advertisement other than those appearing in a radio or television advertisement or in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to DR 2-103(A)(1), shall be labeled "Attorney Advertising" on the first page, or on the home page in the case of a web site. If the communication is in the form of a self-mailing brochure or postcard, the words "Attorney Advertising" shall appear therein. In the case of electronic mail, the subject line shall contain the notation "ATTORNEY ADVERTISING." G. A lawyer or law firm shall not utilize: 1. a pop-up or pop-under advertisement in connection with computer-accessed communications, other than on the lawyer or law firms own web site or other internet presence; or 2. meta tags or other hidden computer codes that, if displayed, would violate a disciplinary rule. H. All advertisements shall include the name, principal law office address and telephone number of the lawyer or law firm whose services are being offered. I. Any words or statements required by this rule to appear in an advertisement must be clearly legible and capable of being read by the average person, if written, and intelligible if spoken aloud. J. A lawyer or law firm advertising any fixed fee for specified legal services shall, at the time of fee publication, have available to the public a written statement clearly describing the scope of each advertised service, which statement shall be available to the client at the time of retainer for any such service. Such legal services shall include all those services which are recognized as reasonable and necessary under local custom in the area of practice in the community where the services are performed. K. All advertisements shall be pre-approved by the lawyer or law firm and a copy shall be retained for a period of not less than three years following its initial dissemination. Any advertisement contained in a computer- accessed communication shall be retained for a period of not less than one year. A copy of the contents of any web site covered by this section shall be preserved upon the initial publication of the web site, any major web site redesign, or a meaningful and extensive content change, but in no event less frequently than once every 90 days. L. If a lawyer or law firm advertises a range of fees or an hourly rate for services, the lawyer or law firm shall not charge more than the fee advertised for such services. If a lawyer or law firm advertises a fixed fee for specified legal services, or performs services described in a fee schedule, the lawyer or law firm shall not charge more than the fixed fee for such stated legal service as set forth in the advertisement or fee schedule, unless the client agrees in writing that the services performed or to be performed were not legal services referred to or implied in the advertisement or in the fee schedule and, further, that a different fee arrangement shall apply to the transaction. M. Unless otherwise specified in the advertisement, if a lawyer publishes any fee information authorized under this Disciplinary Rule in a publication which is published more frequently than once per month, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such publication. If a lawyer publishes any fee information authorized under this Rule in a publication which is published once per month or less frequently, the lawyer shall be bound by any representation made therein until the publication of the succeeding issue. If a lawyer publishes any fee information authorized under this Rule in a publication which has no fixed date for publication of a succeeding issue, the lawyer shall be bound by any representation made therein for a reasonable period of time after publication, but in no event less than 90 days. N. Unless otherwise specified, if a lawyer broadcasts any fee information authorized under this Rule, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such broadcast. O. A lawyer shall not compensate or give any thing of value to representatives of the press, radio, television or other communication medium in anticipation of or in return for professional publicity in a news item. P. All advertisements that contain information about the fees charged by the lawyer or law firm, including those indicating that in the absence of a recovery no fee will be charged, shall comply with the provisions of Judiciary Law 488(3). A. A lawyer or law firm may use internet web sites, professional cards, professional announcement cards, office signs, letterheads or similar professional notices or devices, provided the same do not violate any statute or court rule, and are in accordance with DR 2-101 [1200.6], including the following: 1. A professional card of a lawyer identifying the lawyer by name and as a lawyer, and giving addresses, telephone numbers, the name of the law firm, and any information permitted under DR 2-101 [1200.6] (B), DR 2-105 [1200.10]. A professional card of a law firm may also give the names of members and associates. 2. A professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters pertaining to the professional offices of a lawyer or law firm or any non-legal business conducted by the lawyer or law firm pursuant to section DR 1-106 [1200.5-b]. It may state biographical data, the names of members of the firm and associates and the names and dates of predecessor firms in a continuing line of succession. It may state the nature of the legal practice if permitted under DR 2-105 [1200.10]. 3. A sign in or near the office and in the building directory identifying the law office and any non-legal business conducted by the lawyer or law firm pursuant to DR 1-106 [1200.5-b]. The sign may state the nature of the legal practice if permitted under DR 2-105 [1200.10]. 4. A letterhead identifying the lawyer by name and as a lawyer, and giving addresses, telephone numbers, the name of the law firm, associates and any information permitted under DR 2-101 [1200.6] (B), or DR 2-105 [1200.10]. A letterhead of a law firm may also give the names of members and associates, and names and dates relating to deceased and retired members. A lawyer or law firm may be designated "Of Counsel" on a letterhead if there is a continuing relationship with a lawyer or law firm, other than as a partner or associate. A lawyer or law firm may be designated as "General Counsel" or by similar professional reference on stationery of a client if the lawyer or the firm devotes a substantial amount of professional time in the representation of that client. The letterhead of a law firm may give the names and dates of predecessor firms in a continuing line of succession.
B. A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation shall contain "P.C." or such symbols permitted by law, the name of a limited liability company or partnership shall contain "L.L.C.," "L.L.P." or such symbols permitted by law, and, if otherwise lawful, a firm may use as, or continue to include in its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. Such terms as "legal clinic," "legal aid," "legal service office," "legal assistance office," "defender office" and the like, may be used only by qualified legal assistance organizations, except that the term "legal clinic" may be used by any lawyer or law firm provided the name of a participating lawyer or firm is incorporated therein. A lawyer or law firm may not include the name of a non-lawyer in its firm name, nor may a lawyer or law firm that has a contractual relationship with a non-legal professional or non-legal professional service firm pursuant to DR 1-107 [1200.5-c] to provide legal and other professional services on a systematic and continuing basis include in its firm name the name of the non-legal professional service firm or any individual non-legal professional affiliated therewith. A lawyer who assumes a judicial, legislative or public executive or administrative post or office shall not permit his or her name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which the lawyer is not actively and regularly practicing law as a member of the firm and, during such period, other members of the firm shall not use the lawyer's name in the firm name or in professional notices of the firm. C. A lawyer shall not hold himself or herself out as having a partnership with one or more other lawyers unless they are in fact partners. D. A partnership shall not be formed
or continued between or among lawyers licensed in different jurisdictions unless
all enumerations of the members and associates of the firm
on its letterhead and in other permissible listings make clear the jurisdictional
limitations on those members and associates of the firm not licensed to practice
in all listed jurisdictions; however, the same firm name may be used in each
jurisdiction. E. A lawyer or law firm may utilize a domain name for an internet web site that does not include the name of the lawyer or law firm provided: 1. all pages of the web site clearly and conspicuously include the actual name of the lawyer or law firm; 2. the lawyer or law firm in no way attempts to engage in the practice of law using the domain name; 3. the domain name does not imply an ability to obtain results in a matter; and 4. the domain name does not otherwise violate a disciplinary rule. F. A lawyer or law firm may utilize a telephone number which contains a domain name, nickname, moniker or motto that does not otherwise violate a disciplinary rule. A. A lawyer shall not engage in solicitation: 1. by in-person or telephone contact, or by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or current client; or 2. by any form of communication if: a. the communication or contact violates DR 2-101 (A), DR 2-103(G) or DR 7-111; b. the recipient has made known to the lawyer a desire not to be solicited by the lawyer; c. the solicitation involves coercion, duress or harassment; d. the lawyer knows or reasonably should know that the age or the physical, emotional or mental state of the recipient makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining a lawyer; or e. the lawyer intends or expects, but does not disclose, that the legal services necessary to handle the matter competently will be performed primarily by another lawyer who is not affiliated with the soliciting lawyer as a partner, associate or of counsel.
B. For purposes of this section solicitation means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client. C. A solicitation directed to a recipient in this State, shall be subject to the following provisions: 1. a copy of the solicitation shall at the time of its dissemination be filed with the attorney disciplinary committee of the judicial district or judicial department wherein the lawyer or law firm maintains its principal office. Where no such office is maintained, the filing shall be made in the judicial department where the solicitation is targeted. A filing shall consist of: a. a copy of the solicitation; b. a transcript of the audio portion of any radio or television solicitation; and c. if the solicitation is in a language other than English, an accurate English language translation. 2. such solicitation shall contain no reference to the fact of filing. 3. if a solicitation is directed to a predetermined recipient, a list containing the names and addresses of all recipients shall be retained by the lawyer or law firm for a period of not less than three years following the last date of its dissemination. 4. solicitations filed pursuant to this subdivision shall be open to public inspection. 5. the provisions of this subdivision shall not apply to: (i) a solicitation directed or disseminated to a close friend, relative, or former or existing client; (ii) a web site maintained by the lawyer or law firm, unless the web site is designed for and directed to or targeted at a prospective client affected by an identifiable actual event or occurrence or by an identifiable prospective defendant; or (iii) professional cards or other announcements the distribution of which is authorized by DR 2-102(A). D. A lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that: 1. A lawyer or law firm may refer clients to a non-legal professional or non-legal professional service firm pursuant to a contractual relationship with such non-legal professional or non-legal professional service firm to provide legal and other professional services on a systematic and continuing basis as permitted by DR 1-107, provided however that such referral shall not otherwise include any monetary or other tangible consideration or reward for such, or the sharing of legal fees; or 2. A lawyer may pay the usual and reasonable fees or dues charged by a qualified legal assistance organization or referral fees to another lawyer as permitted by DR 2-107.
E. A written solicitation shall not be sent by a method that requires the recipient to travel to a location other than that at which the recipient ordinarily receives business or personal mail or that requires a signature on the part of the recipient. F. A lawyer or the lawyer's partner or associate or any other affiliated lawyer may be recommended, employed or paid by, or may cooperate with one of the following offices or organizations which promote the use of the lawyer's services or those of a partner or associate or any other affiliated lawyer, or request one of the following offices or organizations to recommend or promote the use of the lawyer's services or those of the lawyer's partner or associate, or any other affiliated lawyer as a private practitioner, if there is no interference with the exercise of independent professional judgment on behalf of the client: 1. a legal aid office or public defender office: a. operated or sponsored by a duly accredited law school; b. operated or sponsored by a bona fide, non-profit community organization; c. operated or sponsored by a governmental agency; or d. Operated, sponsored, or approved by a bar association; 2. A military legal assistance office; 3. A lawyer referral service operated, sponsored or approved by a bar association or authorized by law or court rule; 4. Any bona fide organization which recommends, furnishes or pays for legal services to its members or beneficiaries provided the following conditions are satisfied: a. Neither the lawyer, nor the lawyer's partner, nor associate, nor any other affiliated lawyer nor any non-lawyer, shall have initiated or promoted such organization for the primary purpose of providing financial or other benefit to such lawyer, partner, associate or affiliated lawyer. b. Such organization is not operated for the purpose of procuring legal work or financial benefit for any lawyer as a private practitioner outside of the legal services program of the organization. c. The member or beneficiary to whom the legal services are furnished, and not such organization, is recognized as the client of the lawyer in the matter. d. The legal service plan of such organization provides appropriate relief for any member or beneficiary who asserts a claim that representation by counsel furnished, selected or approved by the organization for the particular matter involved would be unethical, improper or inadequate under the circumstances of the matter involved; and the plan provides an appropriate procedure for seeking such relief. e. The lawyer does not know or have cause to know that such organization is in violation of applicable laws, rules of court or other legal requirements that govern its legal service operations. f. Such organization has filed with the appropriate disciplinary authority, to the extent required by such authority, at least annually a report with respect to its legal service plan, if any, showing its terms, its schedule of benefits, its subscription charges, agreements with counsel and financial results of its legal service activities or, if it has failed to do so, the lawyer does not know or have cause to know of such failure.
G. No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident. H. Any solicitation made in writing or by computer-accessed communication and directed to a pre-determined recipient, if prompted by a specific occurrence involving or affecting a recipient, shall disclose how the lawyer obtained the identity of the recipient and learned of the recipients potential legal need. I. If a retainer agreement is provided with any solicitation, the top of each page shall be marked SAMPLE in red ink in a type size equal to the largest type size used in the agreement and the words DO NOT SIGN shall appear on the client signature line. J. Any solicitation covered by this section shall include the name, principal law office address and telephone number of the lawyer or law firm whose services are being offered. K. The provisions of this section shall apply to a lawyer or members of a law firm not admitted to practice in this State who solicit retention by residents of this State. C. A lawyer may accept employment which results from participation in activities designed to educate the public to recognize legal problems, to make intelligent selection of counsel or to utilize available legal services. D. A lawyer who is recommended, furnished or paid by a qualified legal assistance organization may represent a member or beneficiary thereof, to the extent and under the conditions prescribed therein. E. Without affecting the right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as the lawyer does not undertake to give individual advice. F. If success in asserting rights
or defenses of a client in litigation in the nature of a class action is dependent
upon the joinder of others, a lawyer may accept employment from those contacted
for the purpose of obtaining their joinder, provided such acceptance does not
violate any statute or court rule in the judicial department in which the lawyer
practices. A. A lawyer or law firm may publicly identify one or more areas of law in which the lawyer or the law firm practices, or may state that the practice of the lawyer or law firm is limited to one or more areas of law, provided that the lawyer or law firm shall not state that the lawyer or law firm is a specialist or specializes in a particular field of law, except as provided in DR 2-105 [1200.10] (B) or (C). B. A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation. C. A lawyer may state that the lawyer has been recognized or certified as a specialist only as follows: 1. A lawyer who is certified as a specialist in a particular area of law or law practice by a private organization approved for that purpose by the American Bar Association may state the fact of certification if, in conjunction therewith, the certifying organization is identified and the following statement is prominently made: "The [name of the private certifying organization] is not affiliated with any governmental authority. Certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in this field of law." 2. A lawyer who is certified
as a specialist in a particular area of law or law practice by the authority
having jurisdiction over specialization under the laws of another state
or territory may state the fact of certification if, in conjunction therewith,
the certifying state or territory is identified and the following statement
is prominently made: "Certification granted by the [identify state or territory]
is not recognized by any governmental authority within the State of New York.
Certification is not a requirement for the practice of law in the State of New
York and does not necessarily indicate greater competence than other attorneys
experienced in this field of law." A. A lawyer shall not enter into an agreement for, charge or collect an illegal or excessive fee. B. A fee is excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following: 1. The time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly. 2. The likelihood, if apparent or made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. 3. The fee customarily charged in the locality for similar legal services. 4. The amount involved and the results obtained. 5. The time limitations imposed by the client or by circumstances. 6. The nature and length of the professional relationship with the client. 7. The experience, reputation and ability of the lawyer or lawyers performing the services. 8. Whether the fee is fixed or contingent.
C. A lawyer shall not enter into an arrangement for, charge or collect: 1. A contingent fee for representing a defendant in a criminal case. 2. Any fee in a domestic relations matter: a. The payment or amount of which is contingent upon the securing of a divorce or in any way determined by reference to the amount of maintenance, support, equitable distribution, or property settlement; b. Unless a written retainer agreement is signed by the lawyer and client setting forth in plain language the nature of the relationship and the details of the fee arrangement. A lawyer shall not include in the written retainer agreement a nonrefundable fee clause; or c. Based upon a security interest, confession of judgment or other lien, without prior notice to the client in a signed retainer agreement and approval from a tribunal after notice to the adversary. A lawyer shall not foreclose on a mortgage placed on the marital residence while the spouse who consents to the mortgage remains the titleholder and the residence remains the spouse's primary residence. 3. A fee proscribed by law or rule of court.
D. Promptly after a lawyer has been employed in a contingent fee matter, the lawyer shall provide the client with a writing stating the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery and whether such expenses are to be deducted before or, if not prohibited by statute or court rule, after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and if there is a recovery, showing the remittance to the client and the method of its determination. E. Where representation is in a civil matter, a lawyer shall resolve fee disputes by arbitration at the election of the client pursuant to a fee arbitration program established by the Chief Administrator of the Courts and approved by the justices of the Appellate Divisions. F. In domestic
relations matters, a lawyer shall provide a prospective client with a statement
of client’s rights and responsibilities at the initial conference and prior
to the signing of a written retainer agreement. A. A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of the lawyer's law firm, unless: 1. The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made. 2. The division is in proportion to the services performed by each lawyer or, by a writing given the client, each lawyer assumes joint responsibility for the representation. 3. The total fee of the lawyers does not exceed reasonable compensation for all legal services they rendered the client.
B. This Disciplinary Rule does not
prohibit payment to a former partner or associate pursuant to a separation or
retirement agreement. A. A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits. B. In connection with the settlement
of a controversy or suit, a lawyer shall not enter into an agreement that restricts
the right of a lawyer to practice law. A. A lawyer shall not accept employment on behalf of a person if the lawyer knows or it is obvious that such person wishes to: 1.Bring a legal action, conduct a defense, or assert a position in litigation, or otherwise have steps taken for such person merely for the purpose of harassing or maliciously injuring any person. 2. Present a claim or defense
in litigation that is not warranted under existing law, unless it can be supported
by a good faith argument for an extension, modification, or reversal of existing
law. 1. If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission. 2. Even when withdrawal is otherwise permitted or required under section DR 2-110 [1200.15] (A)(l), (B), or (C), a lawyer shall not withdraw from employment until the lawyer has taken steps to the extent reasonably practicable to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules. 3. A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned. A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if: 1. The lawyer knows or it is obvious that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person. 2. The lawyer knows or it is obvious that continued employment will result in violation of a Disciplinary Rule. 3. The lawyer's mental or physical condition renders it unreasonably difficult to carry out the employment effectively. 4. The lawyer is discharged by his or her client.
Except as stated in DR 2-110 [1200.15](A), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: a. Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law. b. Persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent. c. Insists that the lawyer pursue a course of conduct which is illegal or prohibited under the Disciplinary Rules. d. By other conduct renders it unreasonably difficult for the lawyer to carry out employment effectively. e. Insists, in a matter not pending before a tribunal, that the lawyer engage in conduct which is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules. f. Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees. g. Has used the lawyer's services to perpetrate a crime or fraud. 2. The lawyer's continued employment is likely to result in a violation of a Disciplinary Rule. 3. The lawyer's inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal. 4. The lawyer's mental or physical condition renders it difficult for the lawyer to carry out the employment effectively. 5. The lawyer's client knowingly and freely assents to termination of the employment. 6. The lawyer believes in good
faith, in a proceeding pending before a tribunal, that
the tribunal will find the existence of other good cause for withdrawal. A. A lawyer retiring from a private
practice of law, a 1. With respect to each matter subject to the contemplated sale, the seller may provide prospective buyers with any information not protected as a confidence or secret under 2. Notwithstanding a. concerning the identity of the client, except as provided in b. concerning the status and general nature of the matter; c. available in public court files; and, d. concerning the financial terms of the attorney-client relationship and the payment status of the client's account.
3. Prior to making any disclosure of confidences or secrets that may be permitted under 4. Prospective buyers shall maintain the confidentiality of and shall not use any client information received in connection with the proposed sale in the same manner and to the same extent as if the prospective buyers represented the client. 5. Absent the consent of the client after full disclosure, a seller shall not provide a prospective buyer with information if doing so would cause a violation of the attorney-client privilege. 6. If the seller has reason to believe that the identity of the client or the fact of the representation itself constitutes a confidence or secret in the circumstances, the seller may not provide such information to a prospective buyer without first advising the client of the identity of the prospective buyer and obtaining the client's consent to the proposed disclosure. C. Written notice of the sale shall be given jointly by the seller and the buyer to each of the seller's clients and shall include information regarding: 1. The client's right to retain other counsel or to take possession of the file; 2. The fact that the client's consent to the transfer of the client's file or matter to the buyer will be presumed if the client does not take any action or otherwise object within 90 days of the sending of the notice, subject to any court rule or statute requiring express approval by the client or a court; 3. The fact that agreements between the seller and the seller's clients as to fees will be honored by the buyer; 4. Proposed fee increases, if any, permitted under 5. The identity and background
of the buyer or buyers, including principal office address, bar admissions,
number of years in practice in the D. When the buyer's representation of a client of the seller would give rise to a waivable conflict of interest, the buyer shall not undertake such representation unless the necessary waiver or waivers have been obtained in writing. E. The fee charged a client by the
buyer shall not be increased by reason of the sale, unless permitted by a retainer
agreement with the client or otherwise specifically agreed to by the client. ETHICAL CONSIDERATIONS The prohibition against the practice of law by a non-lawyer is grounded in the need of the public for integrity and competence of those who undertake to render legal services. Because of the fiduciary and personal character of the lawyer-client relationship and the inherently complex nature of our legal system, the public can better be assured of the requisite responsibility and competence if the practice of law is confined to those who are subject to the requirements and regulations imposed upon members of the legal profession. The sensitive variations in the considerations that bear on legal determinations often make it difficult even for a lawyer to exercise appropriate professional judgment, and it is therefore essential that the personal nature of the relationship of client and lawyer be preserved. Competent professional judgment is the product of a trained familiarity with law and legal processes, a disciplined, analytical approach to legal problems, and a firm ethical commitment.DR 1-105 [§1200.5-a] Disciplinary Authority and Choice of Law.
DR 1-106 [1200.5-b] Responsibilities Regarding non-legal Services
DR 1-107 [1200.5-c] Contractual Relationship Between Lawyers and Nonlegal Professionals
CANON 2. A Lawyer Should Assist the Legal Profession in Fulfilling its Duty to Make Legal Counsel Available
EC 2-1
EC 2-2
EC 2-3
EC 2-4 (Repealed)
EC 2-5
EC 2-6
EC 2-7
EC 2-8
EC 2-9
EC 2-10
EC 2-11
EC 2-12
EC 2-13
EC 2-14
EC 2-15
EC 2-16
EC 2-17
EC 2-18
EC 2-19
EC 2-20
EC 2-21
EC 2-22
EC 2-23
EC 2-24
EC 2-25
EC 2-26
EC 2-27
EC 2-28
EC 2-29
EC 2-30
EC 2-31
EC 2-32
EC 2-33
EC 2-34
EC 2-35
EC 2-36
EC 2-37
EC 2-38
DR 2-101 [1200.6] Advertising.
DR 2-102 [1200.7] Professional Notices, Letterheads, and Signs.
DR 2-103 [1200.08] Solicitation and Recommendation of Professional Employment.
DR 2-104 [1200.9] Suggestion of Need of Legal Services.
DR 2-105 [1200.10] Identification of Practice and Specialty.
DR 2-106 [1200.11] Fee for Legal Services.
DR 2-107 [1200.12] Division of Fees Among Lawyers.
DR 2-108 [1200.13] Agreements Restricting the Practice of a Lawyer.
DR 2-109 [1200.14] Obligation to Decline Employment.
DR 2-110 [1200.15] Withdrawal from Employment.
DR 2-111 [1200.15-a] Sale of Law Practice.
CANON 3. A Lawyer Should Assist in Preventing the Unauthorized Practice of Law
EC 3-1
EC 3-2